Citation Nr: 1415381
Decision Date: 04/08/14 Archive Date: 04/15/14
DOCKET NO. 12-00 588 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUE
Entitlement to a waiver of the recovery of an overpayment of nonservice-connected pension benefits in the calculated amount of $11,791.13, to include whether the debt was properly created.
REPRESENTATION
Veteran represented by: Virginia Department of Veterans Services
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
S. Mishalanie, Counsel
INTRODUCTION
The Veteran served on active duty from January 1974 to December 1976.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 decision of the Department of Veterans Affairs (VA) Committee on Waivers and Compromises (COWC) at the Regional Office (RO) and Insurance Center (IC) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned in April 2012.
FINDINGS OF FACT
1. In June 2008, the Veteran failed to appear in court to answer charges that she had violated her probation. The Circuit Court of Rockingham County, Virginia (Circuit Court), issued a capias warrant for her arrest. VA determined that the Veteran was a fugitive felon and retroactively discontinued her nonservice-connected pension benefits from July 2009, resulting in an overpayment.
2. The Veteran had no knowledge of the June 2008 capias warrant, continued to live in the Commonwealth of Virginia, and continued to pay restitution to the Circuit Court pursuant to her September 1998 sentencing order.
3. In March 2010, after learning of the outstanding capias warrant, the Veteran appeared in Circuit Court whereupon the capias warrant and probation violation proceedings were dismissed. She was ordered and paid all court costs and restitution within thirty days.
4. The evidence does not reflect that the Veteran was either fleeing to avoid prosecution or custody or confinement after conviction for a felonious offense, or attempting to commit a felonious offense, or that the Veteran was violating a condition of probation or parole imposed for commission of a felony.
CONCLUSION OF LAW
The determination that the Veteran was a fugitive felon, which resulted in the discontinuance of nonservice-connected pension payments from July 2009 to April 2010, and the creation of an overpayment, was not proper. 38 U.S.C.A. §§ 5103(a), 5103A, 5313B (West 2002 & Supp. 2013); 38 C.F.R. §§ 1.911, 3.665(n) (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset of its discussion, the Board observes that the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are inapplicable to claims, such as the one at issue, involving alleged overpayments of VA benefits. See Lueras v. Principi, 18 Vet. App. 435 (2004). Even if such provisions were for application, however, they would not merit scrutiny in light of the favorable disposition, below.
The Veteran, in written statements and testimony before the Board, contends that the cessation of her VA nonservice-connected pension benefits was improper and, thus, seeks relief from the debt alleged against her in the amount of $11,791.13.
The record reflects that the Veteran's benefits were discontinued for the period in which she was found to be a fugitive felon. See 38 U.S.C.A. § 5313B (West 2002) For VA purposes, this term refers to a person who is: (i) fleeing to avoid prosecution, or custody or confinement after conviction, for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or (ii) violating a condition of probation or parole imposed for commission of a felony under Federal or State law. 38 C.F.R. § 3.665(n)(2)
Having thus set forth the statutory and regulatory provisions implicated in this case, the Board now turns to the pertinent facts at issue. The evidence is clear that, in September 1998, the Veteran agreed to plead guilty to credit card theft and was thereafter sentenced to supervised probation and ordered to pay court costs in the amount of $803.93 and restitution in the amount of $1,100.00. Then, in June 2008, a probation officer alleged that the Veteran had violated the terms of her probation. After she failed to appear in court, a capias warrant was issued for her arrest.
Tellingly, the Veteran now professes to have been unaware of the warrant issued against her and insists that she was not attempting to flee or avoid prosecution. Her assertions are supported by the fact that she continued to make restitution payments to the Circuit Court during the period in which she was allegedly a fugitive. See February 2009 Official Receipt from the Rockingham Circuit Court. That period came to an end in March 2010, when, after being notified of the outstanding warrant, the Veteran appeared in court on her own recognizance. At that time, the warrant against her was dismissed by the Commonwealth of Virginia's own motion. The Circuit Court, in turn, dismissed the probation violation proceedings and ordered the Veteran to pay all court costs and restitution within thirty days. A letter from that judicial body confirms she paid the outstanding balance in April 2010.
Given the above documentation and the Veteran's credible testimony, the Board is unable to unequivocally conclude that she was fleeing to avoid prosecution, custody or confinement. Indeed, while she was alleged to have violated the terms of her probation, all proceedings against her have since been dismissed. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that she was not a fugitive felon for VA purposes during the period at issue and that the withholding of her nonservice-connected pension benefits was improper. It follows that the alleged overpayment is not a valid debt and that the relief sought on appeal is warranted.
ORDER
As an overpayment of VA pension benefits in the calculated amount of $11,791.13 was not properly created; the relief sought on appeal is granted.
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E. Woodward Deutsch
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs